Monday, January 14, 2013

In the first Archdiocese of Philadelphia abuse trial, nobody got to cross-examine a key witness known as "Billy Doe," a former 10-year-old altar boy whose lurid testimony about sex sessions in a church supply closet led to the historic conviction of a monsignor.

At that first trial, defense lawyers in the case, facing a hostile judge, ultimately decided that the price of cross-examing Billy was too high, so they reluctantly gave him a pass. That decision preceded the conviction of Msgr. William J. Lynn, the first Catholic administrator in the country to be sent to jail for the sexual sins of the clergy.

But this time around, at the second Archdiocese of Philadelphia sex abuse trial, Billy Doe is going to be tested, probably severely. And the fate of two additional defendants, a priest and a former Catholic teacher, will depend solely on whether the jury buys Billy's story, because there's not one shred of physical evidence in the case, or any other accuser.

That's the message delivered today in the opening statements of the second Archdiocese of Philadelphia sex abuse trial.

Assistant District Attorney Evangelina Manos got things started by describing the two defendants on trial as predators out stalking youthful victims. As she strode purposefully back and forth in front of the jury box, gesturing with one hand, and speaking in a loud, clear voice, the prosecutor sounded more like a preacher giving a sermon.

"There lurks evil disguised in sheep's clothing," Manos told the jury about Father Charles Engelhardt and former parochial teacher Bernard Shero. "They know that most people think they can do no wrong," she said about the two men accused of taking advantage of the innocent. "They choose their prey wisely," she said, they were experts at knowing "who is weak and vulnerable."

Manos told the jury that Engelhardt, Shero and another former priest, Edward V. Avery, subjected a ten-year-old altar boy to "the most vile acts."

The victim, now 24, was described in a 2011 grand jury report and a subsequent civil lawsuit as Billy Doe.

Avery pleaded guilty on the eve of the first Archdiocese of Philadelphia sex abuse trial, on March 22, 2011, to charges of involuntary deviate sexual intercourse with a minor and endangering the welfare of a child. He was sentenced to 2 1/2 to 5 years in prison.

Manos said that Billy Doe was the fifth-grade son of a Philadelphia police officer and a nurse who belonged to St. Jerome's parish in Northeast Philadelphia. The prosecutor said that on a winter day during the 1998-99 school year, Father Engelhardt caught Billy in the sacristy, stealing some Communion wine.

Instead of doing the responsible thing, and taking the wine away, the prosecutor told the jury, Father Engelhardt told Billy, "Here, have some more." According to the prosecutor, while he plied the boy with wine, Engelhardt asked Billy if he had a girlfriend, what he knew about sex, and whether he liked girls or boys.

"He was just testing the waters," Manos said of Engelhardt; like "a fisherman tossing out bait."

A week later, Engelhardt kept the boy after Mass again. This time, the prosecutor charged, the priest made the altar boy undress. Then the priest put his hand on the boy's thigh, caressed his groin, and touched his penis. Next, the priest put his mouth on the boy's penis, Manos told the jury, " all the while telling him he was a good boy."

"He called these sessions," Manos said of Engelhardt, "vile acts perpetrated on a 10-year-old boy."

The victim, Manos said, will take the stand to recount "the memories and images of a little boy" who was abused by three men; Fathers Engelhardt and Avery, and former teacher Shero.

After Engelhardt got through with Billy, it was Father Avery's turn, Manos told the jury. Avery, who was a known abuser, lived down the hall from Engelhardt at the St. Jerome's rectory. Avery took the victim into the sacristy at St. Jerome's and performed oral sex and masturbation on him. He also put his finger inside the boy's rectum. After Avery got through, the victim complained of "testicular pain," but doctors couldn't find anything wrong with him. Nobody checked his rectum, which might have showed signs of abuse for 48 hours.

A year later, when the boy was in sixth grade at St. Jerome's, it was Shero's turn, the prosecutor said. It began when Shero offered to give the boy a ride home from school one day during the 1999-2000 school year. The teacher took the boy to a secluded area and performed oral sex on him, before attempting to anally rape the victim.

Again, Manos told the jury, you will hear the victim testify, "reciting the memory, feelings and sensations of a 10-year-old boy." A former altar boy, the prosecutor said, who in high school turned to drugs "to numb the pain."

Billy used marijuana and heroin, got arrested again and again, and tried unsuccessfully to beat his addiction, the prosecutor said. Then he called an archdiocese sex abuse hot line, and offered to talk to counselors about what had been done to him. But when the counselors showed up at Billy's house to hear his story, "he was high, he didn't want to talk to them," the prosecutor said.

Manos told the jury that one of the two defendants, Shero, "wasn't planning on being here today." When he found out he was going to be arrested, the prosecutor said, Shero tried to kill himself by downing pills.

"But it didn't work, and he's sitting here today," she said. She told the jury that if they decide Billy Doe is credible, the law said that the testimony of one witness alone was sufficient to convict the two defendants.

At the first archdiocese sex abuse trial, defense lawyers seemed eager to cross-examine Billy, who was tearful, and less than confident on the witness stand. But the defense ultimately decided that the price of trying to poke holes in Billy's story was too high.

Prosecutors in the first case had warned that if the defense attempted to challenge Billy's testimony, the prosecution was going to tell the jury about Avery's guilty plea. At the first trial, the jury was never told why, on the eve of trial, Avery disappeared from the defense table.

And Judge M. Teresa Sarmina had warned that if a contest arose over Billy Doe's testimony, she might allow five additional victims to testify in court who came forward in 2009 and 2010 to say that Father Avery had abused them back in the 1970s. Lynn, the archdiocese's former secretary for the clergy, was being held responsible for failing to keep Avery away from children, and for allowing an unsuspecting Billy to be in harm's way.

The final risk weighed by the defense in the first case was the specter of Avery being dragged into court in his prison jump suit to explain his whereabouts. That possibility was suggested twice by Judge Sarmina. So in the end, the defense decided it was wiser to let the former altar boy tell his story unchallenged. And they've been kicking themselves about it ever since.

At the trial today, two members of Lynn's defense team, Alan J. Tauber and Allison Khaskelis were in the stands waiting to see the cross-examination of Billy.

Meanwhile, prosecutor Manos told the jury that during this trial, expect Ed Avery to show up on the witness stand, presumably in that prison jumpsuit. "You'll get a chance to see him and hear from him," Manos said.

McGovern told the jury that because of all the clergy sex abuse scandals, being a Catholic priest now comes with "a presumption of guilt." Wearing a Roman collar, McGovern said, is "now a bullseye."

But, McGovern told the jury, if they study the evidence, they will find that Billy's story lacks "the ring of truth."They will also discover "a mountain of reasonable doubt." Billy Doe, McGovern said, has told "three, four, five versions" of his story.

"He's never told the same story twice," McGovern said. When archdiocese counselors came to his door, he told them "all this crazy stuff" and then his lawyers claimed Billy was high.

In one version of his story, McGovern said, Billy claimed that Engehardt violently attacked him in the sacristy, and then flipped him over, and "rams him for five hours" of brutal anal sex. How could all that go on for five hours without somebody hearing something or walking in on them?

If his client is supposed to be such a wily predator, McGovern said, somebody who's so good at picking his victims, why on earth would he choose the son of a Philadelphia police sergeant? That wasn't too smart.

McGovern gave the jury a possible motive for Billy's tall tales; the alleged victim has filed a civil lawsuit against the archdiocese, and is looking for a big pay day. In fact, McGovern said, pointing to a spectator in the fourth row, there's Billy's civil attorney, and "he's probably the most interested person in the courtroom."

McGovern said that Billy has varied his stories, saying he had between one and five sexual encounters with Father Engelhardt. Billy also talked about the priest allegedly raping him in a sacristy with several doors that people usually went in and out of. And, while he was spinning all these various stories, Billy was racking up criminal arrests in both Pennsylvania and New Jersey, McGovern said, going in and out of drug rehab, and "in and out of jail."

McGovern said he was looking forward to this trial because he has never had the opportunity before to lay eyes on Billy Doe. The grand jury report that vilified his client was issued on Feb. 10, 2011. For the past two years, Father Engehardt's life has been "on ice," McGovern said. He's still a priest, but he has no assignment, and can only say Mass in private.

But in the two years since the grand jury report, no preliminary hearing was ever held where Father Engelhardt could confront his accuser, McGovern said. Instead, all the preliminaries in this case were handled under the secrecy of the grand jury. Meanwhile, thanks to the media's self censorship, nobody even knows the real name of Engelhardt's accuser.

McGovern described Billy Doe to the jury as "a damaged person, a broken person, a pathetic person." Everyone agrees that at some point, Billy, a happy outgoing child who was once described as "an all-American boy," became an unhappy drug-addicted criminal, McGovern said. But McGovern told the jury to pay close attention to "when did he change, and why did he change?"

Judging by his grades, attendance record, and extra-curricular activities, Billy spent eight happy years in the parochial school at St. Jerome's, McGovern said. But when he got to high school, in June 2002, he was kicked out for carrying a weapon, McGovern said. It's up to the jury to figure out why Billy went bad.

The last opening statement was made by Burton A. Rose, on behalf of former teacher Bernard Shero.

Rose arguably had the toughest mountain to climb. His client, Shero is the guy, who, after all, when facing arrest, tried to commit suicide. Shero also happens to be a large, awkward-looking Herman Munster kind-of-guy with Coke-bottle glasses. Not the definition of a sympathetic figure.

Rose took it all on in straight-forward fashion.

"You might be wondering how you defend a case like this," he began telling the jury. The prosecutor told you "he [Shero] tried to commit suicide in 2000, and that is true," Rose said.

The prosecutor told you that Shero left a suicide note, but he didn't say what the note said, Rose told the jury. Well, in his note, Shero said he was ending his life because of "the shame" the accusations against him were going to bring his family.

My guy has never been arrested before in his life, Rose told the jury. He was Billy Doe's homeroom teacher, and he also taught him English. Rose told the jury to pay attention to the evidence, and they will discover that Billy's story "is nonsense, it doesn't make any sense at all."

Billy Doe has been in "23 drug rehabs in 10 years," and he's been "arrested again and again," Rose said. And if Billy sells his story to this jury, "there's a lot of money" he could win in that civil suit he filed against the archdiocese.

Rose also sought to redefine who his client was. Far from being a predator, Bernard Shero is a visually handicapped guy who's been bullied all his life, Rose said. And during the trial, Shero's mother and sister will testify about that, Rose told the jury.

Shero is legally blind in one eye and "his other eye is severely afflicted," Rose said.

Shero left St. Jerome of his own volition before any charges were filed against him. Why did he give up his first teaching job?

"Because the kids were bullying him," Rose said, and Shero couldn't take it. Shero even had to move after the kids at St. Jerome "threw rocks at his house," Rose said. Instead of the predator, Shero was the prey.

Rose also attacked Billy Doe for wildly varying stories. In one version, Rose said, Billy charged that "Shero attacked me in the classroom," allegedly punching Billy in the face and wrapping a seat belt around his neck.

Billy Doe gave three different stories about where Shero allegedly attacked him, in the classroom, in Shero's car, and in a park.

Rose also told jurors to pay attention when Ed Avery returned to the courtroom. "Ed Avery pleaded guilty, and we're gonna ask him why."

Why did Avery plead guilty?

"Some people take a a plea to avoid an unpleasant outcome," Rose said.

Rose appeared to be referring to an allegation in a failed motion from last September to reconsider bail on behalf of Msgr. Lynn that was filed in Pennsylvania Superior Court. The motion contained a bombshell disclosure that former priest Avery passed a polygraph test indicating he had never touched Billy Doe, the boy he pleaded guilty to abusing.

According to the motion, Avery pleaded guilty even though he told authorities he never even met Billy. The only reason Avery pleaded guilty to a crime he didn't commit, according to the motion, was that Avery was credibly accused by a prior victim, and the prosecution had offered him a good deal.

Polygraph tests, however, are not admissible in Pennsylvania criminal courts, so it may be a challenge for the defense to get this story line, hotly denied by prosecutors, before the jury.

After opening statements, the first witness took the stand: Billy's 52-year-old mother, a registered nurse of 31 years.

The mother told the prosecutor that as a child, Billy "was very rambunctious, very cute and a people person."

Then, at 14, he was kicked out of Archbishop Ryan High School for smoking marijuana and carrying brass knuckles.

"It was completely out of character," his mother said. "He continued to spiral out of control."

Billy became suicidal. He cut his wrists. It's a downward spiral that's continued to this day, his mother said.

When he was 18, Billy finally told his parents that he'd been abused by a Catholic priest. But he wouldn't say any more than that. "He wouldn't tell us anything," his mother testified. "He wouldn't talk about it at all."

Then Billy called the archdiocese sex abuse hot line. When counselors from the archdiocese showed up at Billy's door, Billy's father didn't want his son to talk to them. Billy's parents took Billy to see a lawyer, where they preferred him to do his talking.

That beat talking to the archdiocese. "It was like going to the enemy, which he did," his mother testified, in spite of his parents' wishes.

When it came time to cross-examine Billy's mother, defense lawyers used the 2002 yearbook at St. Jerome's to show that in eighth grade, Billy belonged to an art club, the yearbook staff, a math club, the chess club, the church choir. They also pointed out that Billy's older brother, now a lawyer, went to the same schools Billy did, St. Jerome's and Archbishop Ryan. Billy's older brother also served as an altar boy and never had any problems.

Is Billy's older brother going to testify against him? The defense lawyers were dropping plenty of hints that the words of Billy's brother will also be used against him.

In response to questions from defense lawyers, Billy's mother said that she was unhappy to discover that Billy got several tattoos, including a large crucifix on his back that said "In Memory of Maggie," his grandmother, who died at 61. Another tattoo said, "Lost Soul."

Billy's mother also admitted that she told a grand jury that when he was at St. Jerome's, Billy was described as either "Dennis the Menace or the all-American boy."

"As he entered high school," his mother said, "he was a different child." She still seemed to be wondering why.

Before opening statements were made, today's trial began in confusion as a court clerk asked defendant Engelhardt to stand so the jury could hear how he pleaded to the charges against him. Engelhardt, wearing his priest's collar and a dark suit, pleaded not guilty to six charges that included rape of a child, involuntary deviant sexual intercourse with a child, endangering the welfare of a child, corruption of a minor, indecent assault on a child, and conspiracy.

McGovern, Engelhardt's lawyer, however, stood up and said that no rape charge had ever been filed against his client, an assertion supported by the judge but disputed by prosecutors.

Shero pleaded not guilty to five charges: rape of a child, involuntary deviant sexual intercourse with a child, endangering the welfare of a child, corruption of a minor, and indecent assault on a child. But when the clerk read a sixth charge against him, conspiracy, Rose, Shero's lawyer, said that no conspiracy charge had been filed against his client.

Judge Ceisler did not seem concerned, and did not give the jury any instructions to clear up the confusion. There's a gag order in the case that prevents lawyers on both sides from talking to reporters, so nobody in a position to know could elaborate.

But how can you have a criminal trial, where, from minute one, the jury doesn't know for sure what exactly the defendants are charged with?

Ceisler last week took the level of secrecy in the case a step further, by closing a pre-trial hearing to the press on evidence in the case, and expert witnesses. The judge took the unusual step of sealing all pre-trial motions in the case.

The matters under discussion may have included Ed Avery's return to the courtroom, and Shero's suicide note. But we have no way of knowing because everything is sealed.

Were charges dropped against both defendants? If so, why? When the records are sealed, and the hearings done in private, the public knows nothing.

Maybe in the future, we can just have the grand jury proceed to try these cases in secrecy, so we don't have to go through any messy, public trials that may not achieve the desired outcome of the prosecutors.

Today, before court began, Judge Ceisler convened a second pre-trial hearing in chambers. When reporters tried to object to the secret proceedings, a court clerk began yelling that the case hadn't even begun yet, and that there was still a gag order in effect. The gag order, however, does not apply to the judge.

In her instructions to the jury, Judge Ceisler said jurors were forbidden from reading any media accounts of the trial, such as this one, and were also forbidden by law from investigating any aspect of the case on their own, such as conducting a Google search.

The judge told jurors that "the case is expected to last several weeks," warning, "there will be many twists and turns along the way."

But it remains in doubt whether any of those twists and turns will ever be explained to anybody.

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comments:

What's unusual about this trial is that the victim was/may have been "passed" from predator to predator. Some folks will, of course, find this hard to believe.

But in clergy sex cases, it's far more common than people realize. In the Kansas City diocese alone, there have been two or three dozen suits charging that one child molesting cleric passed a victim on to another. (At least 20 of them have settled).

This is a subject that hits home. My younger brother was abused by the same priest who abused me. My brother became a priest and abused kids. In one civil suit, he was accused of molesting a boy who had earlier been molested by a different priest.

Yeah, good luck with that assertion that some people plead guilty and go to prison to "avoid an unpleasant outcome." Ditto for the notion that a man attempts suicide because he didn't do the crime. As for pitting one brother against another, it's not a good look for the defense. Presenting the teacher as the prey because boys threw rocks at his house is laughable. And going after the damaged family for seeking civil damages is just illogical. Their whole case sounds desperate and despicable. But they can always hope for a mistrial.

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